Monday, October 23, 2006

Give us the body :: The New Editor

On this day in 1861 President Abraham Lincoln suspended the writ of habeas corpus in Washington, DC, for all military-related cases during the Civil War; the previous April, Lincoln had suspended habeas corpus in Maryland, and also in parts of the Midwest.

In 1862, Lincoln suspended the writ of habeas corpus in the entire country.

In 1863, after the US Supreme Court ruled Lincoln's actions unconstitutional (Lincoln simply ignored the Court's ruling), Congress passed the Habeas Corpus Act, formally suspending the writ of habeas corpus in the US.

Posner in Not a Suicide Pact: The Constitution in a Time of National Emergency:
History does not confirm the existence of a civil liberties rachet, a "slippery slope" on which the first step toward curtailing civil liberties precipitates an uninterrupted and perhaps accelerating decline.
. . .
At the outset of an emergency, the government is uncertain about its gravity, on the principle that it is better to be safe than sorry reacts on a worst-case assumption. As more is about the danger, responsive measures are scaled down from worst case to best estimate. Most of the terrorist suspects, mainly illegal immigrants, rounded up and detained in the urgent sweeps that followed 9/11 were releaed after it became apparent that the 9/11 hijackers were not members of a vast internal network.... National security program adopted by the president and the Congress in the wake of the 9/11 attacks were, four years later, under seige.

Civil libertarians are the racheters, insisting that every increase in civil liberties should be treated as a platform for further increases.


Blogger Insipid Chagrin said...

Incisive and interesting.

Though, as a counterfactual, it seems that any governing mechanism has a centrifugal force that tries to accumulate authority. Perhaps the civil libertarian rachetism is the only way to keep the scales relatively balanced.

Also, the argument provided is post priori. Would the government have rolled back its initial response without the civil libertarians and their rachet jobs?

4:58 PM  

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